LGBTQ+ people are overrepresented in the criminal justice system, says UWM researcher

Jane Hereth, assistant professor of social welfare at UWM, conducted a review of existing research on LGBTQ+ people in the criminal justice system for the nonprofit MacArthur Foundation. (UWM Photo/Elora Hennessey)

A national report commissioned by the MacArthur Foundation and released in June found that people who identify as lesbian, gay, bisexual, transgender, queer and intersex are overrepresented in the US criminal justice system.

In fact, LGBTQ+ people are more than twice as likely to be arrested as straight people and three times as likely to be incarcerated as the general population. These statistics are worse for LGBTQ+ people of color.

Jane Hereth, assistant professor of social welfare at UWM, conducted a review of existing research and compiled the report as part of the foundation’s initiative to support criminal justice reform.

In addition to tracking arrests and incarceration rates, she also documented discrimination against LGBTQ+ people within the system and found it manifested at every stage, from arrest to conviction, as well as in the inmate’s prison experience.

Here, Hereth discusses how LGBTQ+ people are often overlooked in criminal justice reform and why the disparity hits young people the hardest.

Why are Are LGBTQ+ people disproportionately likely to be involved in the criminal justice system?

There are a number of contributing factors which I cover in the report. One of the avenues that I outline is related to poverty, homelessness and unemployment.

We know that LGBTQ+ people experience higher rates of unemployment and poverty than non-LGBTQ+ people. For transgender and gender-expansive people in particular, this relates to the barriers of changing their identification documents. It can be very difficult to get a job if the name and gender on your ID doesn’t match how you identify and express your gender. Without jobs, people are forced to engage in criminalized forms of survival, such as sex work or theft, and then punished for it.

What about LGBTQ+ youth?

Young people seem to be particularly overrepresented. Arrests and incarcerations in juvenile justice facilities are particularly high among youth who identify as LGBTQ+, compared to youth involved in the system who do not identify as LGBTQ+.

There is a lot of overlap between the likelihood of being involved in the criminal justice system and being homeless, poor or involved in the child welfare system.

And we know that each of these individual things has been seen to have a disproportionate impact on LGBTQ+ youth. For example, approximately 40% of youth who identify as LGBTQ+ are homeless. And homelessness is often criminalized, with individuals arrested for vagrancy or begging. So there is an “accumulation” of all these different factors.

How do LGBTQ+ youth get on the path that puts them at risk of incarceration? Is it because families reject them?

Family rejection is definitely a big piece of the story. Once young people are evicted or deported by their families, they may find themselves homeless or need to engage in criminalized survival, which can bring them into the system. But I don’t want to put all the blame on the families. Many system failures also occur.

LGBTQ+ youth may be homeless for the same reasons as heterosexual and cisgender youth who become involved in the child welfare system – due to family conflicts unrelated to youth sexual orientation, such as poverty or drug use at home. And then, once young people are involved in the child welfare system, they begin to experience gender and sexual orientation biases.

One of the things we know is that LGBTQ+ youth are more vulnerable to the “school to prison pipeline,” which results from schools using the criminal justice system to deal with rule violations, like fights. Additionally, many LGBTQ+ youth experience bullying at school. When they defend themselves against physical bullying, they are then punished for it.

What does the report say about the experience of LBGTQ+ people once incarcerated?

Much of this research has focused on lack of access to gender-affirming medical care and lack of access to HIV care, which is not specific to LGBTQ+ people. Access to HIV treatment is improving, but access to gender-affirming medical care – transitional and trans healthcare – is a huge problem.

Some research indicates that individuals do not have access to hormones or the proper dosage, and that medical staff in jails and prisons have not received the proper training to treat transgender people.

And that includes mental health care. There is a study of incarcerated LGBTQ+ people conducted by the advocacy group Black & Pink which found that people with a mental health diagnosis did not receive mental health care while incarcerated.

Research also indicates that incarcerated LGBTQ+ people experience higher rates of violence than other inmates, including from prison staff and guards. This same study of incarcerated LGBTQ+ people found that 85% of LGBTQ+ people had been in solitary confinement at some point during their incarceration.

Have overturned or repealed laws of the past continued to affect LGBTQ+ people?

Yes. There is a continuing legacy of LGBTQ+ identity associated with criminality and deviance. This matters because, increasingly, various state legislatures are trying to pass more explicit laws that contribute to criminal prosecutions or increased state surveillance of LGBTQ+ people.

For example, some of the proposed legislation would involve the child welfare system in cases where parents help their children access gender-affirming medical care. We have seen conflicts over access to toilets or access to other public accommodations.

It comes from a legacy of people trying to control other people’s identities.

What are some of the needs your report refers to?

We should offer more support to families whose young people come out of and – this is so important – give more support to young people in schools.

There is a need for more emergency shelters that are LGBTQ+ inclusive and more services for survivors of victimization. Intimate partner violence services are intended for cisgender and heterosexual women. And so there is often no place for LGBTQ+ survivors to go to access services.

We talked about how difficult it is for trans people to get jobs if their names on legal documents and photos don’t match their gender expression. So things like helping people through this daunting process can be really helpful.

And political advocacy is also needed. We need to have broader conversations to change how sexual orientation and gender identities are viewed and work towards greater equality.

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